5.  The applicant was born in 1950 and lives in Groningen.
6.  On 27 July 2001 the Ahrensburg District Court (Amtsgericht) issued a warrant for the applicant's arrest.
7.  On 30 January 2002 the applicant was arrested in Germany and remanded in custody at Oldenburg Prison.
8.  On 22 May 2002 the Lübeck Public Prosecutor issued an indictment against the applicant on several counts of trafficking and importing narcotic substances (cannabis and marihuana).
9.  On 20 June 2002 the Lübeck Regional Court (Landgericht) opened the applicant's trial.
10.  On 22 July 2002 the Schleswig-Holstein Court of Appeal quashed the arrest warrant for failure to comply with the obligation to expedite criminal proceedings where an applicant is in detention pending trial. Following his release from detention, the applicant returned to the Netherlands.
11.  Following negotiations with the applicant's legal representatives, the Lübeck Public Prosecutor gave the applicant an assurance that the prosecution service would institute proceedings under Article 11 of the Convention on the Transfer of Sentenced Persons (European Treaty Series no. 112, “the Transfer Convention”) if the applicant returned to Germany for his trial and confessed to the alleged crimes.
12.  During the oral hearing before the Lübeck Regional Court, which took place on 16 September 2002, the applicant, who had voluntarily returned from the Netherlands, gave a full confession. The Public Prosecutor gave the following statement, as recorded in the transcript of the hearing:
“In this case the current view is that there are no objections to the transfer of the defendant to the Netherlands under the Transfer Convention of 21 March 1983 or against the application of Article 11 of the Transfer Convention.”
13.  Following the hearing, the Lübeck Regional Court, on the basis of the applicant's confession, convicted him on twenty-six counts of unlawful importing and unlawful trafficking of narcotic substances, and sentenced him to three and a half years' imprisonment.
14.  The court accepted as mitigating factors the applicant's confession and the fact that he had voluntarily returned from the Netherlands in order to stand trial. It considered that the oral hearing could probably not have taken place without his cooperation. The applicant having waived his right to appeal, the judgment became final on 16 September 2002.
15.  Following the hearing, the applicant returned to the Netherlands.
16.  On 17 September 2002 the applicant applied to the Schleswig-Holstein Ministry of Justice for the institution of transfer proceedings under Article 11 of the Transfer Convention. In his pleadings, the applicant's counsel relied upon the agreement between the defence, the criminal chamber of the Lübeck Regional Court, and the Public Prosecutor's Office at the Lübeck Regional Court.
17.  On 7 October 2002 the Ministry of Justice forwarded the application to the Head of the Chief Public Prosecutors (Leitender Oberstaatsanwalt) in Lübeck with a request for him to submit a report.
18.  On 22 November 2002 the Head of the Chief Public Prosecutors stated that, as a general rule, execution of sentence in the home country was not an option in such serious cases of drug trafficking. However, the special circumstances of this particular case justified lodging an application for execution assistance with the Dutch Justice Ministry.
19.  On 19 December 2002 the Schleswig Holstein Justice Ministry wrote to the Dutch Justice Ministry enquiring whether it would be possible for it to continue the execution of the German sentence directly under Article 8 § 1 (a) of the Convention between the Member States of the European Communities on the Enforcement of Foreign Criminal Sentences of 13 November 1991 (“the EC Convention on Enforcement” – see International Treaties below). The German Ministry expressed the opinion that the Transfer Convention was not applicable, as the applicant was not in German custody.
20.   On 17 March 2003 the Dutch Justice Ministry declared that in principle there was a willingness to allow the sentence to be executed in the Netherlands. However, in the Netherlands continued enforcement was allowed only in exceptional circumstances, which did not apply in the present case. The Dutch Ministry therefore requested its German counterpart to approve the conversion of the prison term imposed on the applicant, under Article 8 § 1 (b) of the EC Convention on Enforcement.
21.  On 24 April 2003 the German Ministry requested the Head of the Chief Public Prosecutors to state his position. By a letter dated 1 July 2003 the Head of the Chief Public Prosecutors stated that he was opposed to a formal application for execution assistance because the Netherlands would make the execution dependent on a conversion of the sentence.
22.  On 21 July 2003 the Ministry of Justice informed the applicant that it would refrain from lodging a formal application with the Netherlands.
23.  In September 2003 the applicant was summoned to serve his sentence. His requests for the suspension of the execution of his sentence until a final decision on his transfer request was given were unsuccessful.
24.  On 18 January 2004 the applicant lodged a constitutional complaint against the Ministry's decision not to institute transfer proceedings under Article 11 of the Transfer Convention.
25.  On 10 February 2004 an arrest warrant was issued against the applicant as he had failed to start serving his sentence.
26.  On 14 January 2005 the Federal Constitutional Court, sitting as a panel of three judges, declined to consider a constitutional complaint lodged by the applicant. According to the Federal Constitutional Court, the applicant had failed to exhaust domestic remedies. With regard to domestic remedies, the Federal Constitutional Court found as follows:
“The applicant has no right to a judicial review of the exercise of discretion in so far as the decision is based on general, in particular foreign policy, considerations..., the evaluation of which belongs to the core area of Government. However, the judicial review of discretionary powers in respect of law enforcement remains unaffected thereby, in particular with regard to the statement made on the day of the trial by the Lübeck Public Prosecutor's Office ... It cannot be denied that uncertainties may remain for the person seeking justice in this connection in view of the previously disputed contestability of decisions by the authorising authority, as well as in regard to the possible legal remedies. Sufficient account is taken of the possible uncertainties with regard to the legal remedy on account of the possibility of a binding referral under section 17a § 2 of the Courts Act. It is reasonable to expect the applicant to have recourse to a disputed legal remedy.”
27.  According to the Federal Constitutional Court, it was for the lower courts to decide which court was competent in the applicant's case. These courts had further to consider whether the impugned act interfered with the applicant's right to a fair trial or with the principle of protection of legitimate confidence. Notwithstanding the possibility of lodging a fresh request, the fact that the relevant time-limits for lodging appeals might in the meantime have expired did not lead to the constitutional complaint being admissible.
28.  This decision was served on the applicant's counsel on 10 February 2005.
29.  On 14 February 2005 the applicant lodged a fresh request with the Justice Ministry that execution of his sentence be taken over under Article 11 of the Transfer Convention.
30.  A warrant is still out against the applicant for having failed to start serving his sentence.